EPA to Redefine Protected Wetlands, Reversing Biden Rule
The EPA will redefine waters of the US, or WOTUS, to comply with the US Supreme Court’s 2023 ruling in Sackett v. EPA, which lifted Clean Water Act jurisdiction on many wetlands, Administrator Lee Zeldin said Wednesday.
The Environmental Protection Agency also said wetlands protected under the Clean Water Act are only those that directly abut navigable waterways, according to new guidance on how federal agencies shall respond to Sackett.
The EPA will pursue a “definition that is simple and durable and withstands the test of time,” Zeldin said during an announcement in Washington. “This is to simply follow the rule of law.”
The agency will hold a series of public “listening sessions” that will “inform any future administrative actions” on the definition of WOTUS, according to a draft Federal Register notice EPA published alongside the guidance.
The EPA will review the current definition, and the listening sessions will focus on hearing from people who were “sidelined during the previous administration,” the agency said in a news release.
The EPA’s move is the next twist in the long history of WOTUS. The Obama administration vastly expanded the scope of federal Clean Water Act waters and wetlands jurisdiction, only to be narrowed in the first Trump administration. Former President Joe Biden re-expanded the scope of WOTUS in early 2023, but narrowed it later that year in a rule that was finalized without public comment to conform the earlier rule to Sackett.
The new rule will stop the “pingpong” between definitions, Zeldin said.
Businesses are tired of the WOTUS “whiplash,” and farmers are angry over fines they faced because of WOTUS misunderstandings, Sen. Joni Ernst (R-Iowa) said during the announcement.
“For far too long we’ve seen this grip of federal government affecting Iowans’ lives” and threatening their livelihoods, she said.
Twenty-seven states challenged Biden’s WOTUS rules in three separate lawsuits.
The justices in Sackett ruled protected wetlands must be relatively permanent with a “continuous surface connection” to, and “indistinguishable” from, navigable waters, “so that there is no clear demarcation between ‘waters’ and wetlands.”
But the Biden administration interpreted Sackett in the broadest possible way, saying only a physical connection between waters and wetlands is required to comply with the ruling. That interpretation led the US Army Corps of Engineers to claim CWA jurisdiction over nearly all of Alaska’s Arctic Coastal Plain.
EPA’s new guidance throws out that interpretation.
Waters and wetlands that have a physically-remote hydrological connection to traditionally navigable waters don’t count as WOTUS, the new guidance says.
Limited Scope
The guidance will be implemented by the EPA and the Army Corps of Engineers, which determines Clean Water Act jurisdiction in most states.
“I think this is a cautious first step to limit the scope of waters of the US,” said Neal McAliley, a shareholder at Carlton Fields PA in Miami.
“The strategy is to issue guidance that is fairly limited and then plan for the rulemaking,” he said. “They haven’t identified specifically what the rulemaking is,” but the EPA is starting with notice and comment of a possible rulemaking with major changes likely to come in the future.
The EPA’s new guidance tosses out Biden administration guidance that a wetland separated from a navigable water by a berm but connected by a culvert—a common scenario in coastal areas—qualifies the wetland as WOTUS, McAliley said.
“Culverts don’t count anymore,” he said.
The new guidance will provide immediate relief for landowners that have wetlands far from traditional navigable waters, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.
It “puts the burden on the Corps and EPA to implement a more specific analysis of what establishes a hydrological connection,” he said.
The Natural Resources Defense Council accused Zeldin of adopting an extreme interpretation of Sackett—already an extreme ruling, the environmental group said in a statement.
A new WOTUS definition will leave communities “more exposed to toxic pollution, dangerous flooding, and the contamination of drinking water supplies for tens of millions of people,” said Andrew Wetzler, senior vice president for nature at NRDC.